(The Police Commissioner
of Delhi recently announced at his annual Press Conference that the Maharashtra
Control of Organised Crime Act 1999 had been promulgated in Delhi also.
This was a surprise. Even the Chief Minister of Delhi said that she had
no prior information about this and went on record to say that it was
unnecessary. Senior Police officers later told the Press that they had
not seen the piece. We excerpt below the relevant parts of the legislation.
Wherever necessary the words "State" and "State of Maharashtra"
may be substituted by "Capital" and the "the National Capital
Territory of Delhi" - Ch. Ed.)

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2. Definitions - (1) In this Act, unless the context otherwise requires,
- (a) "abet", with its grammatical variations and cognate expressions,
includes, - (i) the communication or association with any person with
the actual knowledge or having reason to believe that such person is engaged
in assisting in any manner, an organised crime syndicate; (ii) the passing
on or publication of, without any lawful authority, any information likely
to assist the organised crime syndicate and the passing on or publication
of or distribution of any document or matter obtained from the organised
crime syndicate; and (iii) the rendering of any assistance, whether financial
or otherwise, to the organised crime syndicate;
*** *** ***
(e) "organised crime" means any continuing unlawful activity
by an individual, singly or jointly, either as a member of an organised
crime syndicate or on behalf of such syndicate, by use of violence or
threat of violence or intimidation or coercion, or other unlawful means,
with the objective of gaining pecuniary benefits, or gaining undue economic
or other advantage for himself or any other person or promoting insurgency;
*** *** ***
3. Punishment for organised crime - (1) Whoever commits an offence of
organised crime shall, - (i) if such offence has resulted in the death
of any person, be punishable with death or imprisonment for life and shall
also be liable to a fine, subject to a minimum fine of rupees one lac;
(ii) in any other case, be punishable with imprisonment for a term which
shall not be less than five years but which may extend to imprisonment
for life and shall also be liable to a fine, subject to a minimum fine
of rupees five lacs. (2) Whoever conspires or attempts to commit or advocates,
abets or knowingly facilitates the commission of an organised crime or
any act preparatory to organised crime, shall be punishable with imprisonment
for a term which shall be not less than five years but which may extend
to imprisonment for life and shall also be liable to a fine, subject to
a minimum fine of rupees five lacs. (3) Whoever harbours or conceals or
attempts to harbour or conceal, any member of an organised crime syndicate
shall be punishable with imprisonment for a term which shall not be less
than five years but which may extend to imprisonment for life, and shall
also be liable to a fine, subject to a minimum fine of rupees five lacs.
(4) Any person who is a member of an organised crime syndicate shall be
punishable with imprisonment for a term which shall not be less than five
years but which may extend to imprisonment for life and shall also be
liable to a fine, subject to a minimum fine of rupees five lacs. (5) Whoever
holds any property derived or obtained from commission of an organised
crime or which has been acquired through the organised crime syndicate
funds shall be punishable with a term which shall not be less than three
years but which may extend to imprisonment for life and shall also be
liable to fine, subject to a minimum fine of rupees two lacs.
4. Punishment for possessing unaccountable wealth on behalf of member
of organised crime syndicate - If any person on behalf of a member of
an organised crime syndicate is, or, at any time has been, in possession
of movable or immovable property which he cannot satisfactorily account
for, he shall be punishable with imprisonment for a term which shall not
be less than three years which may extend to ten years and shall also
be liable to fine, subject to a minimum fine of rupees one lac and such
property shall also be liable for attachment and forfeiture, as provided
by section 20.
5. Special Courts - (1) The State Government may, by notification in the
Official Gazette, constitute one or more Special Courts for such area
or areas, or for such case or class or group of cases, as may be specified
in the notification. (2) Where any question arises as to the jurisdiction
or any Special Court, it shall be referred to the State Government whose
decision shall be final. (3) A Special Court shall be presided over by
a judge to be appointed by the State Government, with the concurrence
of the Chief Justice of the Bombay High Court. The State Government may
also appoint, with the concurrence of the Chief Justice of the Bombay
High Court, additional judges to exercise jurisdiction in a Special Court.
(4) A person shall not be qualified for appointment as a judge or an additional
judge of a Special Court, unless he immediately before such appointment
is a sessions judge or an additional sessions judge. (5) Where any additional
judge is or additional judges are appointed in a Special Court, the judge
of the Special Court may, from time to time, by general or special order
in writing, provide for the distribution of the business of the Special
Court among himself and the additional judge or additional judges and
also for the disposal of urgent business in the event of his absence or
the absence of any additional judges.
6. Jurisdiction of Special Court - Notwithstanding anything contained
in the Code, every offence punishable under this Act shall be triable
only by the Special Court within whose local jurisdiction it was committed,
or as the case may be, by the Special Court constituted for trying such
offence under sub- section (1) of section 5.
7. Power of Special Courts with respect to other offences (1) When trying
any offence punishable under this Act, a Special Court may also try any
other offence with which the accused may, under the Code, be charged at
the same trial, if the offence is connected with such other offence. (2)
If, in the course of any trial of any offence under this Act, it is found
that the accused person has committed any other offence under this Act
or under another law, the Special Court may convict such person of such
other offence and may pass any sentence authorised by this Act or, as
the case may be, such other law, for the punishment thereof.
*** *** ***
9. Procedure and powers of Special Court (1) A Special Court may take
cognizance of any offence without the accused being committed to it for
trial, upon receiving a complaint of facts which constitute such offence
or upon a police report of such facts.
(2) Where an offence triable by a Special Court is punishable with imprisonment
for a term not exceeding three years or with fine or with both, the Special
Court may, notwithstanding anything contained in sub-section (1) of section
260 or section 262 of the Code, try the offence in summary way in accordance
with the procedure prescribed in the Code and the provisions of Sections
263 to 265 of the Code shall, as far as may be, apply to such trial: Provided
that, where in the course of a summary trial under this sub-section, it
appears to the Special Court that the nature of the case is such that
it is undesirable to try in a summary way, the Special Court shall recall
any witnesses who may have been examined and proceed to re-hear the case
in the manner provided by the provisions of the Code for the trial of
such offence and the said provisions shall apply to and in relation, to
a Special Court as they apply to and in relation, to a Magistrate: Provided
further that, in case of any conviction in a summary trial under this
Section, it shall be lawful for a Special Court to pass a sentence of
imprisonment for a term not exceeding two years.
(3) A Special Court may, with a view to obtaining the evidence of any
person, supposed to have been directly or indirectly concerned in or privy
to an offence, tender a pardon to such person on condition of his making
a disclosure of the whole circumstances within his knowledge relative
to the offence and to every other person concerned, whether as principal
or abettor, in the commission thereof, and any pardon so tendered shall,
for the purposes of Section 308 of the Code, be deemed to have been tendered
under Section 307 thereof.
(4) Subject to other provisions of this Act, a Special Court shall, for
the purpose of trial of any offence, have all the powers of a Court of
Session and try such offence as if it were a Court of Session, so far
as may be, in accordance with the procedure prescribed in the Code for
the trial before a Court of Session.
10. Trial by Special Courts to have precedence - The trial of any offence
under this Act by a Special Court shall have precedence over the trial
of any other case against the accused in any other Court (not being a
Special Court) and shall be concluded in preference of the trial of such
other case and accordingly the trial of such other cases shall remain
in abeyance.
11. Power to transfer cases to regular Courts - Where, after tag cognizance
of an offence, a Special court is of the opinion that the offence is not
triable by it, it shall, notwithstanding that it has no jurisdiction to
try such an offence, transfer the case for trial of such offence to any
Court having jurisdiction under the Code and the Court to which the case
is transferred may proceed with the trial of the offence as if it had
taken cognizance of the offence.
12. Appeal - (1) Notwithstanding anything contained in the Code, an appeal
shall lie from any judgment, sentence or order, not being an interlocutory
order, of a Special Court to the High Court. (2) Every appeal under this
Section shall be preferred within thirty days from the date of the judgment,
sentence or order.
13. Appointment of Competent Authority - The State Government may appoint
any of its officer, in Home Department, not below the rank of Secretary
to Government, to be the Competent Authority for the purposes of section
14.
14. Authorization of interception of wire, electronic or oral communication
- (l) A police officer not below the rank of Superintendent of Police
supervising the investigation of an organised crime under this Act may
submit an application in writing to the Competent Authority for an order
authorising or approving the interception of wire, electronic or oral
communication by the investigating officer when such interception may
provide or has provided evidence of any offence involving an organised
crime.
(2) Each application shall include the following information: (a) the
identity of the investigative or law enforcement officer making the application,
and the head of the department authorizing the application; (b) a statement
of the facts and circumstances relied upon by the applicant, to justify
his belief that an order should be issued, including: (i) details as to
the offence of organised crime that has been, is being, or is about to
be committed; (ii) a particular description of the nature and location
of the facilities from which or the place where the communication is to
be intercepted; (iii) a particular description of the type of communications
sought to be intercepted; and (iv) the identity of the person, if known,
committing the offence of organised crime whose communications are to
be intercepted; (c) a statement as to whether or not other modes of enquiry
or intelligence gathering have been tried and failed or why they reasonably
appear to be unlikely to succeed if tried or to be too dangerous or is
likely to expose the identity of those connected with the operation of
interception; (d) a statement of the period of time for which the interception
is required to be maintained. If the nature of the enquiry is such that
the authorization for interception should not automatically terminate
when the described type of communication has been first obtained, a particular
description of facts establishing probable cause to believe that additional
communications of the same type will occur thereafter; (e) a statement
of the facts concerning all previous applications known to the individual
authorizing and making the application, made to the Competent Authority
for authorization to intercept, or for approval of interceptions of, wire,
electronic or oral communications involving any of the same persons, facilities
or places specified in the application and the action taken by the Competent
Authority on each such application; and (f) where the application is for
the extension of an order, a statement setting forth the results thus
far obtained from the interception, or a reasonable explanation of the
failure to obtain such results.
(3) The Competent Authority may require the applicant to furnish additional
oral or documentary evidence in support of the application.
(4) Upon such application, the Competent Authority may after recording
the reasons in writing reject the application, or issue an order, as requested
or as modified, authorising or approving interception of wire, electronic
or oral communications, if the Competent Authority determines on the basis
of the facts submitted by the applicant that- (a) there is a probable
cause for belief that an individual is committing, has committed, or is
about to commit a particular offence described and made punishable under
Sections 3 and 4 of this Act; (b) there is a probable cause for belief
that particular communications concerning that offence will be obtained
through such interception; (c) normal modes of enquiry and intelligence
gathering have been tried and have failed or reasonably appear to be unlikely
to succeed if tried or to be too dangerous or is likely to expose the
identity of those connected with the operation of interception; (d) there
is probable cause for belief that the facilities from which, or the place
where, the wire, electronic or oral communications are to be intercepted
or be used or are about to be used, in connection with the commission
of such offence, leased to, or are listed in the name of or commonly used
by such person.
(5) Each order by the Competent Authority authorizing or approving the
interception of any wire, electronic or oral communication under this
section shall specify- (a) the identity of the person, if known, whose
communications are to be intercepted; (b) the nature and location of the
communication facilities as to which, or the place where, authority to
intercept is granted; (c) a particular description of the type of communication
sought to be intercepted, and a statement of the particular offence to
which it relates; (d) the identity of the agency authorized to intercept
the communications, and of the person authorizing the application, and
(e) the period of time during which such interception is authorized, including
a statement as to whether or not the interception shall automatically
terminate when the described communication has been first obtained.
(6) The Competent Authority shall immediately after passing the order
under sub-section (4), but in any case not later than seven days from
the passing of the order, submit a copy of the same to the Review Committee
constituted under Section 15 alongwith all the relevant underlying papers,
record and his own findings, etc., in respect of the said order, for consideration
and approval of the order by the Review Committee.
(7) An order authorizing the interception of a wire, electronic or oral
communication under this Section shall, upon request of the applicant,
direct that a provider of wire or electronic communication service, landlord,
custodian or other person shall furnish to the applicant forthwith all
information, facilities and technical assistance necessary to accomplish
the interception unobtrusively and with a minimum of interference with
the services that such service provider, landlord, custodian, or person
is providing to the person whose communications are to be intercepted.
(8) No order issued under this Section may authorize or approve the interception
of any wire, electronic or oral communication for any period longer than
is necessary to achieve the objective of the authorization, nor in any
event longer than sixty days. Such sixty days period shall begin on the
day immediately preceding the day on which the investigative or law enforcement
officer first begins to conduct an interception under the order or ten
days after the order is issued, whichever is earlier. Extension of an
order may be granted, but only upon an application for an extension is
made in accordance with sub-section (1) and the Competent Authority making
the findings required by sub-section (4). The period of extension shall
be no longer than the Competent Authority deems necessary to achieve the
purposes for which it was granted and in no event for longer than sixty
days at a time. Every order and extension thereof shall contain a provision
that the authorization to intercept shall be executed as soon as practicable
and shall be conducted in such a way or manner as to minimize the interception
of communications not otherwise subject to interception under this Section
and must terminate upon attainment of the authorized objective, or in
any event on expiry of the period of order. In the event the intercepted
communication is in a Code of foreign language, and an expert in that
foreign language or Code is not reasonably available during the interception
period, minimization may be accomplished as soon as practicable after
such interception. An interception under this Section may be conducted
in whole or in part by public servant, or by an individual operating under
a contract with the State Government, acting under the supervision of
the investigative or law enforcement officer authorized to conduct the
interception.
(9) Whenever an order authorizing interception is issued pursuant to this
Section, the order may require reports to be made to the Competent Authority
who issued the order showing that progress has been made towards achievement
of the authorized objective and the need for continued interception. Such
reports shall be made at such intervals as the Competent Authority may
require.
(10) Notwithstanding anything contained in any other provision of this
Section, an Officer not below the rank of Additional Director General
of Police who reasonably determines that- (a) an emergency situation exists
that involves- (i) immediate danger of death or serious physical injury
to any person; (ii) conspiratorial activities threatening the security
or interest of the State; or (iii) conspiratorial activities, characteristic
of organized crime, that requires a wire, electronic or oral communication
to be intercepted before an order from the Competent Authority authorizing
such interception can, with due diligence, be obtained, and (b) there
are grounds upon which an order could be issued under this section to
authorize such interception, may authorise, in writing, the investigating
Police Officer to intercept such wire, electronic or oral communication,
if an application for an order approving the interception is made in accordance
with the provisions of sub-sections (1) and (2) within forty-eight hours
after the interception has occurred, or begins to occur.
(11) In the absence of an order approving the interception made under
sub-section (10), such interception shall immediately terminate when the
communication sought is obtained or when the application for the order
is rejected, whichever is earlier. In the event where an application for
permitting interception is rejected under sub-section (4) or an application
under sub-section (10) for approval is rejected, or in any other case
where the interception is terminated without an order having been issued,
the contents of any wire, electronic or oral communication intercepted
shall be treated as having been obtained in violation of this section.
(12)(a) The contents of any wire, electronic or oral communication intercepted
by any means authorized by this Section shall, if possible, be recorded
on tape or wire or other comparable devise. Recording of the contents
of any wire, electronic or oral communication under this sub-section shall
be done in such a way as will protect the recording from editing or other
alterations. Immediately upon the expiration of the period of order, or
extension thereof, such recordings shall be made available to the Competent
Authority issuing such order and shall be sealed under his directions.
Custody of the recordings shall be wherever the Competent Authority orders.
They shall not be destroyed except upon an order of the Competent Authority
and in any event shall be kept for ten years. (b) Applications made and
orders issued under this Section shall be sealed by the Competent Authority.
Custody of the applications and orders shall be wherever the Competent
Authority directs, and shall not be destroyed except on an order of the
Competent Authority, and in any event shall be kept for ten years. The
Competent Authority upon the filing of a motion, may in his discretion
make available to such person or his Counsel for inspection such portions
of the intercepted communications, applications and orders as the Competent
Authority determines to be in the interest of justice.
(13) Notwithstanding anything in the Code or in any other law for the
time being in force, the evidence collected through the interception of
wire, elect or oral communication under this section shall be admissible
as evidence against the accused in the Court during the trial of a case:
Provided that, the contents of any wire, electronic or oral communication
intercepted pursuant to this section or evidence derived therefrom shall
not be received in evidence or otherwise disclosed in any trial, hearing
or other proceeding in any Court unless each party, not less than ten
days before trial, hearing or proceeding, has been furnished with a copy
of the order of the Competent Authority, and accompanying application,
under which the interception was authorised or approved: Provided further
that, this ten days period may be waived by the judge, trying the matter,
if he finds that it was not possible to furnish the party with the above
information ten days before the trial, hearing or proceeding and that
the party will not be prejudiced by the delay in receiving such information.
Explanation -For the purposes of this section - (a) "wire communication"
means any aural transfer made in whole or part through the use of facilities
for the transmission of communications by the aid of wire, cable or other
like connection between the point of origin and the point of connection,
between the point of origin and the point of reception (including the
use of such connection in switching station) and such term includes any
electronic storage of such communication, (b) "oral communication"
means any oral communication uttered by a person exhibiting an expectation
that such communication is not subject to interception under circumstances
justifying such expectation but such terms does not include any electronic
communication; (c) "electronic communication" means any transfer
of signs, signals, writings, images, sounds, data or intelligence of any
nature transmitted in whole or in part by a wire, radio, electromagnetic,
photo electronic or photo optical system that affects inland or foreign
commerce but does not include,- (i) the radio portion of a cordless telephone
communication that is transmitted between the wireless telephone hand-set
and the base unit; (it) any wire or oral communication; (iii) any communication
made through a tone only paging device; or (iv) any communication from
a tracking device; (v) "intercept" means the aural or other
acquisition of the contents by wire, electronic or oral communication
through the use of any electronic, mechanical or other device.
15. Constitution of Review Committee for review of authorisation orders
- (1) There shall be a Review Committee to review every order passed by
the Competent Authority under section 14. (2) The Review Committee shall
consist of the following ex officio members, namely: - (i) the Chief Secretary
to Government Chairman; (ii) the Additional Chief Secretary or the senior-most
Principal Secretary, as the case may be, in the Home Department. Member;
(iii) Principal Secretary or Secretary and Remembrancer of Legal Affairs,
Law and Judiciary Department Member. (3) Every order passed by the Competent
Authority under Section 14, placed before the Review Committee, shall
be considered by the Review Committee within ten days after its receipt,
to decide whether the order, authorising or approving the application
under sub-section (4) of Section 14, for interception or disapproving
the interception made under sub-section (10) of that Section in emergency
situation, passed by the Competent Authority was necessary, reasonable
and justified. (4) The Review Committee, after examining the entire record
and holding such enquiry, if any, deemed necessary may, by order in writing,
either approve the order passed by the Competent Authority or may issue
order disapproving the same. On issue of an order of disapproval by the
Review Committee, the interception, if any, already commenced shall be
forthwith discontinued. The intercepted communication, if any, in the
form of tape, wire or other device shall, thereupon, not be admissible
as evidence in any case and shall be directed to be destroyed.
16. Interception and disclosure of wire, electronic or oral communications
prohibited - Except as otherwise specifically provided in Section 14,
any police officer who- (a) intentionally intercepts, endeavours to intercept,
or procures any other person to intercept or endeavour to intercept any
wire, electronic or oral communication; (b) intentionally uses, endeavours
to use, or procures any other person to use or endeavours to use any electronic,
mechanical or other device to intercept any oral communication when- (i)
such device is affixed to, or otherwise transmits a signal through a wire,
cable, or other like connection used in wire communication; or (ii) such
device transmits communications by radio, or interferes with the transmission
of such communication; (c) intentionally discloses, or endeavours to disclose,
to any other person the contents of any wire, electronic or oral communication,
knowing or having reason to know that the information was obtained through
the interception of a wire, electronic or oral communication in violation
of this sub-section; (d) intentionally uses, or endeavours to use, the
contents of any wire, electronic or oral communication, knowing or having
reason to know that the information was obtained through the interception
of a wire, electronic or oral communication in violation of this sub-section;
or (e) (i) intentionally discloses, or endeavours to disclose, to any
other person the contents of any wire, electronic or oral communication,
intercepted by means authorized by Section 14; (ii) knowing or having
reason to know that the information was obtained through the interception
of such a communication in connection with a criminal investigation under
this Act; (iii) having obtained or received the information in connection
with a criminal investigation; and (iv) with intent to improperly obstruct,
impede, or interfere with a duly authorised criminal investigation; or
(f) intentionally continues the interception of wire, electronic or oral
communication after the issue of an order of disapproval by the Review
Committee under sub-section (4) of Section 15, shall for such violation
be punishable with imprisonment for a term which may extend to one year
and with fine upto rupees fifty thousand.
17. Special rules of evidence-(1) Notwithstanding anything to the contrary
contained in the Code, or the Indian Evidence Act, 1872 (1 of 1872), for
the purposes of trial and punishment for offences under this Act or connected
offences, the Court may take into consideration as having probative value,
the fact that the accused was,- (a) on any previous occasion bound under
Section 107 or Section 110 of the Code; (b) detained under any law relating
to preventive detention; or (c) on any previous occasion was prosecuted
in the Special Court under this Act. (2) Where it is proved that any person
involved in an organised crime or any person on his behalf is or has at
any time been in possession of movable or immovable property which he
cannot satisfactorily account for, the Special Court shall, unless contrary
is proved, presume that such property or pecuniary resources have been
acquired or derived by his illegal activities. (3) Where it is proved
that the accused has kidnapped or abducted any person, the Special Court
shall presume that it was for ransom.
18. Certain confessions made to police officer to be taken into consideration-(I)
Notwithstanding anything in the Code or in the Indian Evidence Act, 1872
(1 of 1872), but subject to the provisions of this Section, a confession
made by a person before a police officer not below the rank of the Superintendent
of Police and recorded by such police officer either in writing or on
any mechanical devices like cassettes, tapes or sound tracks from which
sounds or images can be reproduced, shall be admissible in the trial of
such person or co-accused, abettor or conspirator: Provided that, the
co-accused, abettor or conspirator is charged and tried in the same case
together with the accused. (2) The confession shall be recorded in a free
atmosphere in the same language in which the person is examined and as
narrated by him. (3) The police officer shall, before recording any confession
under sub- section (1), explain to the person making it that he is not
bound to make a confession and that, if he does so, it may be used as
evidence against him and such police officer shall not record any such
confession unless upon questioning the person making it, he is satisfied
that it is being made voluntarily. The concerned police officer shall,
after recording such voluntary confession, certify in writing below the
confession, putting the date and time of the same. (4) Every confession
recorded under sub-section (1) shall be sent forthwith to the Chief Metropolitan
Magistrate or the Chief Judicial Magistrate having jurisdiction over the
area in which such confession has been recorded and such Magistrate shall
forward the recorded confession so received to the Special Court which
may take cognizance of the offence. (5) The person from whom a confession
has been recorded under sub- section (1) shall also be produced before
the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to
whom the confession is required to be sent under sub-section (4) alongwith
the original statement of confession, written or recorded on mechanical
device without unreasonable delay. (6) The Chief Metropolitan Magistrate
or the Chief Judicial Magistrate shall scrupulously record the statement,
if any, made by the accused so produced and get his signature and in case
of any complaint of torture, the person shall be directed to be produced
for medical examination before a Medical Officer not lower in rank than
of an Assistant Civil Surgeon.
19. Protection of witnesses-(1) Notwithstanding anything contained in
the Code, the proceedings under this Act may be held in Camera, if the
Special Court so desires, (2) A Special Court may, on an application made
by a witness in any proceeding before it or by the Public Prosecutor in
relation to such witness or on its own motion, take such measures as it
deems fit for keeping the identity and address of any witness secret.
(3) In particular, and without prejudice to the generality of the provisions
of sub-section (2), the measures which a Special Court may take under
that sub- section may include,- (a) the holding of the proceedings at
a place to be decided by the Special Court; (b) the avoiding of the mention
of the names and addresses of the witnesses in its orders or judgments
or in any records of the case accessible to public; (c) the issuing of
any directions for securing that the identity and addresses of the witnesses
are not disclosed; (d) that, it is in the public interest to order that
all or any of the proceedings pending before such a Court shall not be
published in any manner. (4) Any person who contravenes any direction
issued under sub-section (3) shall be punishable with imprisonment for
a term which may extend to one year and with fine which may extend to
one thousand rupees.
20. Forfeiture and attachment of property-(1) Where a person has been
convicted of any offence punishable under this Act, the Special Court
may, in addition to awarding any punishment, by order in writing, declare
that any property, movable or immovable or both, belonging to the accused
and specified in the order, shall stand forfeited to the State Government,
free from all encumbrances. (2) Where any person is accused of any offence
under this Act, it shall be open to the Special Court trying him, to pass
an order that all or any properties, movable or immovable or both, belonging
to him, shall, during the period of such trial, be attached, and where
such trial ends in conviction, the properties so attached shall stand
forfeited to the State Government, free from all encumbrances. (3)(a)
If, upon a report in writing made by an investigating police officer with
the approval of the supervisory officer referred to in sub-section (1)
of Section 14, any Special Court has reason to believe that any person,
who has committed an offence punishable under this Act has absconded or
is concealing himself so that he may not be apprehended, such Court may,
notwithstanding anything contained in Section 82 of the Code, publish
a written proclamation requiring him to appear at a specified place and
at a specified time not less than fifteen days but not more than thirty
days from the publication of such proclamation: Provided that, if the
investigating police officer concerned fails to arrest the accused, who
has absconded or is concealing himself, within a period of three months
from the date of registering the offence against such person, the officer
shall, on the expiry of the said period, make a report to the Special
Court for issuing the proclamation. (b) The Special Court issuing a proclamation
under clause (a) may, at any time, order the attachment of any property,
movable or immovable or both, belonging to the proclaimed person, and
thereupon the provisions of Sections 83 to 85 of the Code shall apply
to such attachment as if such attachment were made under that Code. (c)
If, within six months from the date of attachment, any person, whose property
is, or has been, at the disposal of the State Government under sub-section
(2) of Section 85 of the Code, appears voluntarily or is apprehended and
brought before the Special Court by whose order the property was attached,
or the Court to which such Court is subordinate, and proves to the satisfaction
of such Court that he did not abscond or conceal himself for the purpose
of avoiding apprehension and that he had not received such notice of the
proclamation as to enable him to attend within the specified time therein,
such property or, if the same has been sold, the net proceeds of the same
and the residue of the property, shall, after satisfying therefrom all
costs incurred in consequence of the attachment, be delivered to him.
21. Modified application of certain provisions of the Code-(1) Notwithstanding
anything contained in the Code or in any other law, every offence punishable
under this Act, shall be deemed to be a cognizable offence within the
meaning of clause (c) of Section 2 of the Code and "cognizable case"
as defined in that clause shall be construed accordingly. (2) Section
167 of the Code shall apply in relation to a case involving an offence
punishable under this Act subject to the modifications that, in sub-section
(2), (a) the references to "fifteen days", and "sixty days",
wherever they occur, shall be construed as references to "thirty
days" and "ninety days", respectively; (b) after the proviso,
the following proviso shall be inserted, namely: "Provided further
that if it is not possible to complete the investigation within the said
period of ninety days, the Special Court shall extend the said period
upto one hundred and eighty days, on the report of the Public Prosecutor
indicating the progress of the investigation and the specific reasons
for the detention of the accused beyond the said period of ninety days."
(3) Nothing in Section 438 of the Code shall apply in relation to any
case involving the arrest of any person on an accusation of having committed
an offence punishable under this Act. (4) Notwithstanding anything contained
in the Code, no person accused of an offence punishable under this Act
shall, if in custody, be released on bail or on his own bond, unless-
(a) the Public Prosecutor has been given an opportunity to oppose the
application of such release; and (b) where the Public Prosecutor opposes
the application, the Court is satisfied that there are reasonable grounds
for believing that he is not guilty of such offence and that he is not
likely to commit any offence while on bail. (5) Notwithstanding anything
contained in the Code, the accused shall not be granted bail if it is
noticed by the Court that he was on bail in an offence under this Act,
or under any other Act, on the date of the offence in question. (6) The
limitations on granting of bail specified in sub-section (4) are in addition
to the limitations under the Code or any other law for the time being
in force on the granting of bail. (7) The police officer seeking the custody
of any person for pre- indictment or pre-trial interrogation from the
judicial custody shall file a written statement explaining the reason
for seeking such custody and also for the delay, if any, in seeking the
police custody.
22. Presumption as to offences under Section 3-(1) In a prosecution for
an offence of organised crime punishable under Section 3, if it is proved
- (a) that unlawful arms and other material including documents or papers
were recovered from the possession of the accused and there is reason
to believe that such unlawful arms and other material including documents
or papers were used in the commission of such offence; or (b) that by
the evidence of an expert, the finger prints of the accused were found
at the site of the offence or on anything including unlawful arms and
other material including documents or papers and vehicle used in connection
with the commission of such offence, the Special Court shall presume,
unless the contrary is proved, that the accused had committed such offence.
(2) In a prosecution for an offence of organised crime punishable under
sub-section (2) of Section 3, if it is proved that the accused rendered
any financial assistance to a person accused of, or reasonably suspected
of, an offence of organised crime, the Special Court shall presume, unless
the contrary is proved, that such person has committed the offence under
the said sub-section (2).
23. Cognizance of, and investigation into, an offence-(1) Notwithstanding
anything contained in the Code,- (a) no information about the commission
of an offence of organised crime under this Act, shall be recorded by
a police officer without the prior approval of the police officer not
below the rank of the Deputy Inspector General of Police; (b) no investigation
of an offence under the provisions of this Act shall be carried out by
a police officer below the rank of the Deputy Superintendent of Police.
(2) No Special Court shall take cognizance of any offence under this Act
without the previous sanction of the police officer not below the rank
of Additional Director General of Police.
24. Punishment for public servants failing in the discharge of their duties-Whoever
being a public servant renders any help or support in any manner in the
commission of organised crime as defined in clause (e) of Section 2, whether
before or after the commission of any offence by a member of an organised
crime syndicate or abstains from taking lawful measures under this Act
or intentionally avoids to carry out the directions of any Court or of
the superior police officers in this respect, shall be punished with imprisonment
of either description for a term which may extend to three years and also
with fine.
25. Overriding effect-The provisions of this Act or any rule made thereunder
or any order made under any such rule shall, have effect notwithstanding
anything inconsistent therewith contained in any other law for the time
being in force or in any instrument having the force of law.
26. Protection of action taken in good faith-No suit, prosecution or other
legal proceeding shall lie against the State Government or any officer
or authority of the State. Government for anything which is in good faith
done or intended to be done in pursuance of this Act or any rule made
thereunder or any order issued under any such rule.
27. Annual Report of Interceptions-(1) The State Government shall cause
an annual report to be prepared giving a full account of,- (i) the number
of applications for authorisation of interceptions received by the Competent
Authority from the Police Department in which prosecutions have been launched;
(ii) the number of such applications permitted or rejected; (iii) the
number of interceptions carried out in emergency situations and the number
of ex-post-facto authorisations or approvals granted or rejected in such
matters; (iv) the number of prosecutions launched based on such interceptions
and convictions resulting from such interceptions, alongwith an explanatory
memorandum giving general assessment of the utility and importance of
the interceptions authorised. (2) Such annual report shall be laid by
the State Government before each House of the State Legislature within
three months of the completion of every calendar year: Provided that,
if the State Government is of the opinion that the inclusion of any matter
in the annual report would be prejudicial to the security of the State
or to the prevention or detection of any organised crime, the State Government
may exclude such matter from being included in such annual report.
28. Power of High Court to make rules-The High Court may, by notification
in the Official Gazette, make such rules as it may deem necessary for
carrying out the provisions of this Act relating to the Special Courts.
29. Powers of State Government to make rules-(1) Without prejudice to
the powers of the High Court to make rules under Section 28, the State
Government may, by notification in the Official Gazette, make rules for
carrying out the purposes of this Act. (2) Every rule made under this
Act shall be laid, as soon as may be after it is made, before each House
of the State Legislature, while it is in session, for a total period of
thirty days, which may be comprised in one session or in two or more successive
sessions, and if, before the expiry of the session immediately following
the session or the successive sessions aforesaid, both Houses agree in
making any modification in the rule or both Houses agree that the rule
should not be made, and notify such decision in the Official Gazette,
the rule shall, from the date of publication of such notification, have
effect only in such modified form or be of no effect, as the case may
be, so, however, that any such modification or annulment shall be without
prejudice to the validity of anything previously done under that rule.